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[2015] ZAGPJHC 196
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Kunene v Maupye (2015/24833) [2015] ZAGPJHC 196 (8 September 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/24833
DATE: 08 SEPTEMBER 2015
In the matter between:
ZACHARIA DINGINDAWO
KUNENE
.................................................................................
Applicant
And
PHUTHI WASHINGTON
MAUPYE
..................................................................................
Respondent
J U D G M E N T
MAKUME, J:
[1] On the 20th August 2015 the
Applicant launched this application in accordance with the provisions
of Rule 6(12)(a) of the Uniform
Rules of Court in which application
the present applicant seeks the following order:
“That the eviction order granted
against the Applicant on the 18th August 2015 in the above Honourable
Court under Case Number
2015/24833 to vacate premises known as Erf[
……] Extension [.….] also known as Number [8…..]
[C…….]
Street, [E…..] Park, [T……],
Gauteng be rescinded and/or set aside forthwith.
[2] This application is but one of the
numerous legal wrangles concerning ownership and occupation of the
property stated above
and for a better understanding as to where the
parties are I think it is necessary to set out a brief narrative of
certain facts
and circumstances giving rise to this litigation as
they emerge from the papers.
REGISTRATION OF THE PROPERTY
[3] It is common knowledge that during
or about March 2014 the Registrar of Deeds transferred ownership of
Erf [2…..], [E….]
Park, Extension [……]
Township, (the property) into the name of Phuthi Washington Maupye
and his wife Makhomo Elizabeth
Maupye the first and second
respondents in this application.
THE KEMPTONPARK MAGISTRATE’S
COURT ORDER
[4] It is further common cause that on
the 6th July 2015 under Case Number 10209/2014 the Magistrate’s
Court at Kempton Park
made the following order in favour of the
Applicant against the Respondent:
“It is ordered that the Second
and Third Respondents are ordered to restore possession and
occupation of the immovable property
known as Erf [2…..],
[E…..] Park, Extension […….] Township Gauteng to
the Applicant on or before 12h00
on 8 July 2015.”
[5] On the same day the Respondent’s
attorneys addressed a letter to the Applicant’s attorneys
advising them that they
have instructions to note an appeal against
the judgment of the Magistrate.
[6] On the 4th August 2014 the
Respondent noted appeal against the order of the Magistrate to the
High Court.
THE SATCHWELL J ORDER OF THE 10TH
JULY 2015
[7] On the 10th July 2014 the
Respondent launched an urgent application in this Court under Case
Number 2015/24833 paragraph 2 of
that order reads as follows:
“2. Pending final determination
of an appeal which must be noted within 10 days of the date of
receiving the reasons from
the learned Magistrate V Da Silva, at the
Kempton Park Magistrate Court for the Order handed down on the 06th
July 2015 in case
number 10209/14.
2.1 The eviction of the tenants at the
aforesaid address, property [2…….], house no, [8…….]
[C……]
Street, [E…….] Park, [T…..],
namely (Third to Sixth Applicants Ndoda Khumalo, Jonas Mabaso,
Lawrence Niyamba
and Ishmail Shilowa is declared unlawful).
2.2 The aforesaid order of the learned
Magistrate at the Kempton Park Magistrate Court is invalid and
unenforceable against the
aforementioned Third to Sixth Applicants in
the application.
2.3 The First and Second Respondents
are forthwith and immediately to restore the aforementioned Third to
Sixth Applicants Ndoda
Khumalo, Jonas Mabaso, Lawrence Niyamba, and
Ishmail Shilowa into their lawful occupation as tenants of the
aforesaid property
[2…….], house no. [8…..]
[C…….] Street, [E……] Park, [T…..].”
THE ORDER BY VALLY J DATED 18 AUGUST
2015
[8] On the 18th August 2015 the First
Respondent in this matter was granted an order in the urgent court by
his Lordship Vally which
reads as follows:
“1. The First and Third
Respondents are to vacate property 2207 house number [8……..]
[C…….] Street,
[E……] Park, [T…….]
on or before Sunday 23 August 2015.
2.If the First and Third Respondents
fail to vacate the property on Sunday 23 August 2015 the Second
Respondent is directed to forthwith
eject the First and Third
Respondents from property [2……] house number [8……]
[C…..] Street,
[E…..] Park, [T…..].
3. The Second Respondent is hereby
ordered to hand over possession of the property [2…..] house
number [8…..] [C…….]
Street, [E……]
Park, [T……] to the Applicant.”
THE PRESENT APPLICATION
[9] As I have indicated at the start of
this judgment the Applicant seeks an order rescinding and setting
aside the judgment by
Vally. This application was launched on the
20th August 2015 as an urgent application and set down for hearing on
the 25th August
2015.
[10] Applications for rescission of
judgments and orders are governed procedurally in terms of Rule 42(1)
of the Uniform Rules of
Court which Rule reads as follows:
“42(1) The Court may in addition
to any other powers it may have mero motu or upon the application of
any party affected rescind
or vary:
(a) An order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby.
(b) An order or judgment in which there
is ambiguity or a patent error or omission, but only to the extent of
such ambiguity, error
or omission.
(c) An order or judgment granted as a
result of a mistake common to the parties.”
[11] It was held in the matter of Kotze
v Kotze
1953 (2) SA 184
(C) that:
“It is the plain and unqualified
obligation of every person against or in respect of whom an order is
made by a Court of competent
jurisdiction to obey it, unless and
until that order is discharged.”
[12] The Applicant tells the court in
this application at paragraph 6 that the order of eviction granted on
the 18th August 2015
was by default in that the Honourable Court did
not have the reasons of the applicant. What the Applicant seems to
say is that
although he was present in court he was not afforded an
opportunity to say what his defence was. This cannot be correct it
appears
from listening to argument by counsel that the Applicant was
afforded an opportunity to state his case and thereafter a ruling was
made. Whether a judgment is erroneous or not it remains valid until
it is set aside.
[13] Any person who cannot bring an
application for setting aside a judgment under either Rule 31 of Rule
42 may nevertheless be
entitled to have the judgment set aside at
common law in a proper case. The court in Hard Road (Pty) Ltd v Oribi
Motors (Pty) Ltd
1977 (2) SA 576
(W) held that such right is limited.
[14] Rule 42(1) does not specifically
require ‘good cause’ or ‘sufficient cause’
(as in certain earlier
rules) to be shown before a judgment can be
rescinded or varied. Paragraph (a) of this rule requires however that
the judgment
must have been erroneously sought or erroneously
granted.
[15] Although the Applicant does say in
paragraph 6.7 of his affidavit that the order granted on the 18th
August 2015 was erroneously
sought and granted he forgets that that
can only apply if such judgment was granted in the absence of the
Applicant. The present
matter is that the Applicant was present in
court in person when judgment was granted.
[16] The Applicant seems to rely on
the argument that the Respondent had no locus standi to bring the
application. This argument
cannot be correct for in that application
the Respondent described himself as a lawful owner of the property.
Nowhere does the
Applicant challenge the Respondent’s ownership
of the property.
[17] In Bakoven Ltd v G J Howes (Pty)
Ltd
1992 (2) SA 466
(E) at 471F Erasmus J held that a judgment may be
set aside in terms of Rule 42(1)(a) on the ground that it was
erroneously granted
only if the court has made a mistake in a matter
of law appearing on the proceedings of a court of record and in
deciding whether
judgment was erroneously granted the court is
confined to the record of the proceedings.
[18] In paragraph 6.11 of his founding
affidavit the Applicant in furtherance of his “erroneously
sought or granted theory”
says that the Respondent should have
brought an application in the Magistrate’s Court to suspend the
operation of that judgment
pending the outcome of his appeal. This
argument has no merit for it is trite law that once an appeal is
noted against a judgment
that brings about the automatic staying of
execution of that judgment and if a party in whose favour the
judgment was granted whishes
to execute it is that party who must
approach court for the indulgence to execute on the judgment
notwithstanding the appeal.
[19] Having said this I refrain from
pursuing this matter any further the point in limine argued by the
Respondent is sufficient
reason for my decision to refuse the
application.
[20] I accordingly order as follows:
(a)The application is dismissed.
(b) The Applicant is ordered to pay the
Applicant’s taxed costs on a party and party scale.
DATED at JOHANNESBURG on this 8th
day of SEPTEMBER 2015
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING 26 AUGUST 2015
DATE OF JUDGMENT 8TH SEPTEMBER 2015
FOR APPLICANT ADV S Mziako
INSTRUCTED BY NCHUPETSANG ATTORNEYS
62 Marchall Street Johannesburg
Tel: 011 492 3544
Ref: Mr. Nchupetsang
FOR RESPONDENT ADV F MAGANO
INSTRUCTED BY MALISEHA ATTORNEYS
c/o Hadebe Attorneys
132 Market Street
212 Mansion House Building
Johannesburg
Tel: (011) 333-7662